Last-Minute Obama Decision Ripe For Elimination

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Kenny Hulshof Former Congressman
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Our nation is six months removed from our last presidential election and we continue to debate the results. Comments by former Secretary of State Hillary Clinton about why she lost the race for the Presidency—and numerous other analyses since last November—have offered many reasons for her defeat. One factor that hasn’t been given much attention is Obama fatigue—especially in the country’s business sector.

Donald Trump appealed to millions of voters who had grown frustrated with eight years of antagonistic policies toward domestic companies and who believed that they had a better chance to thrive economically under a Trump administration. That collective anti-business perception was borne out by the previous President’s last-minute rush to implement a slew of additional regulations post-election. One unheralded and harmful regulation jammed through in the 11th hour by the Obama Administration was a rule to regulate the trace chemical element beryllium.

Just days before the end of the previous administration, the Occupational Safety and Health Administration (OSHA) issued a final rule on worker exposure to beryllium that was radically different than what the agency had originally proposed. The initial rule—first published in the Federal Register in 2015—was designed to regulate worker exposure to beryllium in the alloy manufacturing process and specifically exempted “those performing abrasive blasting work in the construction and shipyards industries.”

When the final rule was issued in January 2017, however, OSHA did an abrupt about-face, unilaterally deciding to regulate exposure to trace levels of beryllium in all industries. Companies and workers impacted by this costly regulation had been given no chance to express their views during the official public comment period. Construction and maritime industries which use abrasive blasting in their normal operations were blind-sided by OSHA’s over-reach and will have to bear significant increases in costs, risking their ability to operate.

Make no mistake, exposure to beryllium alloy in large amounts can lead to dangerous chronic diseases. But there is 20,000 times less beryllium in abrasive blasting than there is in the alloy. Workers in the abrasive blasting industry have a strong safety record and there has not been one documented case of any individual in the industry becoming ill from beryllium exposure.

One glaring objection to OSHA’s last-minute ruling is the lack of scientific data that exposure to trace levels of beryllium used in abrasive blasting is toxic. Instead the agency made a number of incendiary—but unsubstantiated—claims. OSHA states in its final rule that the regulation, when implemented, “will prevent 96 premature deaths each year,” but the agency offers no scientific evidence to verify this bold assertion. OSHA also boasts that its new rule will “average $575.8 million in annual benefits for the next 60 years.” What are these “annual benefits” and to whom will they accrue? What methodology was used to come up with such a precise number?  Did the agency also consider the added cost to the affected industries? Again, OSHA has offered little information to confirm its conclusion.

One consequence with OSHA’s final rule—perhaps unintended—is the potential impact on the makeup of the workforce in the abrasive blasting industry. As companies struggle to comply with the new government mandate, employers will consider replacing individual workers with automated machines. In other words, businesses in the construction and maritime industries will perform their own cost-benefit analyses: as the expenses of compliance with the new rule mount, companies may determine to invest in automation and lay off their skilled labor force. There has been a lot of criticism of automation lately, mostly focused on corporations looking to downsize their workforces. This is an actual example where the push for automation is explicitly driven by government regulation.

Some Members of Congress have spoken up to criticize the Obama Administration’s 11th-hour efforts to revamp workplace rules. Rep. Bradley Byrne (R-AL), Chairman of the House Education and Workforce Subcommittee on Workforce Protections, said OSHA’s last-minute overreach “rewrote federal law while doing nothing to improve worker health and safety.” I couldn’t agree more.

As the Trump Administration continues to look for ways to put people back to work—especially Americans working in the skilled trade industries—I hope they will move to reconsider this ill-conceived ruling from OSHA as it applies to the maritime and construction industries. Protecting workers from exposure to high levels of beryllium is common sense. But there are thousands of employees across the nation in the abrasive blasting industry who work safely with trace levels of beryllium every day. Those hard-working individuals may be the actual casualties of the OSHA rule.

Kenny Hulshof, a Republican, represented Missouri’s 9th Congressional District from 1997 – 2009